The National Labor Relations Board (the Board) recently issued yet another decision invalidating common handbook policies and work rules.  This case is the most recent in a long series of cases striking down common rules governing employee conduct.  In Hills and Dales General Hospital, 360 NLRB No. 70 (Apr. 1, 2014), the Board held that three provisions in a non-union hospital’s Values and Standards of Behavior Policy (the Policy) were invalid on their face because employees could reasonably construe the provisions to prohibit employees from engaging in protected concerted activities.  

Two of the provisions prohibited employees from making “negative comments about [their] fellow team members” and “engag[ing] in or listen[ing] to negativity or gossip.”  The Board noted that these provisions violated the National Labor Relations Act because employees could interpret them as barring employees from engaging in concerted, protected activities, such as making negative comments about managers or complaining about other terms and conditions of employment.  The third provision required employees to “represent [the hospital] in the community in a positive and professional manner in every opportunity.”  The Board overruled the administrative law judge’s determination that this provision was lawful, reasoning that employees could view it as prohibiting them from protesting unfair labor practice violations,  communicating with third parties about their complaints regarding terms and conditions of employment or engaging in other similar types of protected activity. 

In invalidating these provisions, the Board found the hospital’s reason for adopting the Policy, including the relevant provisions, to be unpersuasive.  The hospital adopted the Policy not to address union organizing activity, but to address the hospital’s reportedly poor reputation among employees and the public, which indisputably resulted in patients seeking treatment at other hospitals, high turnover rates and difficulty recruiting new employees.  The Board also flatly rejected the hospital’s argument that the Policy was adopted only after the extensive involvement, comment and approval of a team of hospital employees. 

This decision is part of a growing trend of Board decisions dating back to 2012 invalidating common handbook provisions and workplace rules of both union and non-union employers.  This trend underscores the need for all employers to carefully monitor this area of the law, and seek legal counsel as necessary, to ensure that policies and handbook provisions do not violate federal labor laws.